Citation Nr: 0207135
Decision Date: 07/01/02 Archive Date: 07/10/02
DOCKET NO. 97-21 841 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
Entitlement to service connection for the cause of the
veteran's death.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
Joseph P. Gervasio, Counsel
INTRODUCTION
The veteran served on active duty from January 1949 to
November 1952.
This case comes to the Board of Veterans' Appeals (Board) on
appeal of a March 1997 rating decision of the St. Petersburg,
Florida, Regional Office (RO) of the Department of Veterans
Affairs (VA).
The case was remanded by the Board in June 1998.
FINDINGS OF FACT
1. The veteran died on October [redacted], 1996, at age 66. The
certificate of death shows the immediate cause of death to be
renal cell carcinoma. An addendum to the death certificate
shows other significant conditions contributing to death but
not resulting in the underlying cause of death to be a
fracture of the left femoral neck and a rotator cuff tear of
the left shoulder. No autopsy was performed.
2. At the time of his death, service connection was not in
effect for any disorder.
3. Renal cell carcinoma was not manifested in service or for
many years thereafter.
4. There is no causal or etiologic relationship demonstrated
on the record between the fatal renal cell carcinoma, left
femoral neck fracture or left rotator cuff tear, and the
veteran's period of active duty.
5. Material impairment of health or general debilitation as
a result of the service-connected disabilities, alone or in
combination thereof, is not demonstrated on the record as an
actual factor in the veteran's death.
CONCLUSIONS OF LAW
1. Renal cell carcinoma was not incurred in or aggravated by
service. 38 U.S.C.A. § 1110 (West Supp. 2001); 38 C.F.R. §
3.303 (2001).
2. A disability of service origin did not cause, or
materially or substantially contribute to, the veteran's
death. 38 U.S.C.A. § 1310 (West 1991), 38 C.F.R. § 3.312
(2001).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
To establish service connection for a claimed disability, the
facts, as shown by the evidence, must demonstrate that a
particular disease or injury resulting in current disability
was incurred during active service or, if preexisting active
service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131.
In addition, certain chronic diseases, including cancer, may
be presumed to have been incurred during service if they first
become manifest to a compensable degree within one year of
separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113,
1137; 38 C.F.R. §§ 3.307, 3.309. If a condition noted during
service is not shown to be chronic, then generally a showing
of continuity of symptoms after service is required for
service connection. 38 C.F.R. § 3.303(b). It is noted that,
while certain disabilities may, by law, be presumed to have
been related to service where a veteran has been incarcerated
as a prisoner of war, regulations applicable to these diseases
require that prisoner of war status be in effect for 30 days
or more. 38 C.F.R. § 3.309(c).
To establish service connection for the cause of the
veteran's death, the evidence must show that a disease or
disability incurred in or aggravated by service either caused
or contributed substantially or materially to cause death.
In determining whether the service-connected disability
contributed to death, it must be shown that it contributed
substantially or materially; that it combined to cause death;
or that it aided or lent assistance to the production of
death. It is not sufficient to show that it casually shared
in producing death; rather, it must be shown that there was a
causal connection. Service-connected diseases or injuries
involving active processes affecting vital organs should
receive full consideration as a contributory cause of death,
the primary cause being unrelated, from the viewpoint of
whether there were resulting debilitating effects and general
impairment of health to an extent that would render the
person materially less capable of resisting the effects of
other disease or injury primarily causing death. 38 U.S.C.A.
§ 1310; 38 C.F.R. § 3.312.
There are primary causes of death which, by their very
nature, are so overwhelming that eventual death can be
anticipated irrespective of co-existing conditions, but even
in such cases, there is for consideration whether there may
be a reasonable basis for holding that a service-connected
condition was of such severity as to have a material
influence in accelerating death. In this situation, however,
it would not generally be reasonable to hold that a service-
connected condition accelerated death unless such condition
affected a vital organ and was of itself of a progressive or
debilitating nature. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312.
The certificate of death indicates that the immediate cause
of the veteran's death was renal cell carcinoma. In an
affidavit of amendment to the original certificate of death,
it was indicated that other significant conditions
contributing to death, but not resulting in the immediate
cause of death, were a fracture of the left femoral neck and
a rotator cuff tear of the left shoulder. No autopsy was
performed.
The veteran served on active duty from January 1949 to
November 1952. His personnel records show that he was a
prisoner of war of the Chinese government from April 25,
1951, to May 15, 1951, a period of 21 days. He was awarded
the Combat Infantryman Badge. While engaging the enemy in
Korea, he sustained wounds to the left arm in September 1950
and to the buttock in April 1951.
A review of the service medical records show extensive
treatment records. The separation examination and other
documents may have been destroyed during a fire at the
National Personnel Records Center in 1973. VA has a
heightened duty to assist the veteran in developing his claim
since the records have been lost or destroyed by fire. See
O'Hare v. Derwinski, 1 Vet. App. 365 (1991); Russo v. Brown,
9 Vet. App. 46, 50-51 (1996); Layno v. Brown, 6 Vet. App.465,
469 (1994).
The available service medical records show no complaint or
findings diagnostic of renal cell carcinoma. The records
show that, while in service, the veteran was treated for such
disabilities as tonsillitis; an inguinal hernia; traumatic
injury of the right eye, left forearm, and left buttock; an
acute, severe left ankle sprain; a simple comminuted fracture
of the nasal bone; and malaria. He was also treated for
residuals of a shrapnel wound of the right buttock sustained
while in combat in the Republic of Korea and slight
malnutrition incurred while he was a prisoner of war of the
Chinese government in 1951. The records show he was
hospitalized on May 19, 1951. The clinical history shows
that he sustained missile fragment wounds to the right
buttock on April 25, 1951. He was captured by the Chinese
and held prisoner until May 15, 1951. During this time he
received no treatment for his wound. An examination showed a
through and through wound to the right buttock. The entry
and exit wounds were healed. He was undernourished. No
reference was made to the left hip. Service connection was
not in effect for any disability, as the veteran never
submitted a claim.
Medical records, dated in 1971 and 1972 and prepared for a
claim for workman's compensation benefits, show that the
veteran sustained an injury of his left ankle in 1968 and of
his left knee in 1970. He underwent surgery for removal of
the left medial meniscus in February 1970 and March 1971. It
was noted that the left leg condition was permanent.
Additional medical records show that the veteran sustained a
re-injury of the left knee in 1972.
Medical records from the veteran's private physician show
that the veteran underwent the open reduction and internal
fixation of a displaced subcapital fracture of the left hip
in July 1996, which occurred after he fell from a ladder. In
August 1996, it was noted that he had progressed to 25
percent weight bearing. In early September 1996, he
presented due to a severe onset of left shoulder pain. He
was also having new problems with his left hip and it was
found that the fixation that was previously performed had
slipped and was now displaced as compared to the original
postoperative status. He was eventually hospitalized at a
private facility when he underwent surgery for a left rotator
cuff tear. During the physical examination a nonreducible
abdominal mass in the left lower quadrant was noted. The
mass was found to be consistent with renal cell carcinoma.
The veteran stated that he had noted progressive problems
eating, with early satiety and intermittent episodes of
nausea and vomiting. CT scan study showed a renal mass to
the left kidney, with local metastasis and invasion of the
lymph node system of the abdomen as well as probable liver
metastasis. This was considered to be an ominous prognostic
sign; it was agreed among the specialists consulted that no
palliative nephrectomy would offer the veteran any
improvement in the quality of life and the tumor was deemed
unresectable. It was further believed that the pin failure
in the left hip could have been caused by renal cell
metastasis to this area.
The veteran was again hospitalized in October 1996, at which
time he had difficulty breathing. At that time, the
impressions were left renal cell carcinoma with extensive
metastasis to bone and liver as well as malignant and
recurrent pleural effusion. A therapeutic thoracentesis was
performed, after which the veteran started breathing easier.
Numerous statements have been received from J. R. M., D.O.,
the veteran's private doctor. He indicated that, although
the veteran did die from metastatic renal carcinoma, he was
of the opinion that the fracture of the left hip had
contributed to the veteran's rapid demise.
The veteran may well have had service-related malaria, hernia
and shell fragment wound residuals, as well as other
musculoskeletal injury residuals from trauma to his right
eye, nose, left forearm and left ankle. These disabilities
are not; however, shown to have been related to the veteran's
death. Even if one were to take at face value Dr. Morris's
assertion that the left hip fracture contributed to the
veteran's rapid demise, there is no indication in the record
that this fracture was related to the injuries that the
veteran sustained while on active duty, including the
shrapnel wound that he sustained in combat. Rather, the
record shows that the veteran died as the result of
metastatic renal carcinoma with metastasis to the abdomen,
liver and bones. In fact, the cancer that led to his death
was so overwhelming that death was inevitable irrespective of
any other disorder.
There is no indication in the record that the renal carcinoma
that caused the veteran's death was manifested during service
or that it was related to service in any way. Under these
circumstances, the claim for service connection for the cause
of the veteran's death must be denied.
ORDER
Service connection for the cause of the veteran's death is
denied.
MARY GALLAGHER
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.